ID: Legality of Odometer Mileage Blocking Devices--Ro

January 12, 2021

BY E-MAIL

Mr. Kevin S. Ro Director/Group Manager

Sustainability & Regulatory Affairs Toyota Motor North America, Inc.

Re:   Illegality of Electronic Devices that Prevent Odometers from Accurately Accumulating Miles

Dear Mr. Ro:

On January 4, 2021, you sent a letter on behalf of Toyota Motor North America, Inc. (Toyota) requesting the views of the National Highway Traffic Safety Administration (NHTSA) on the legality of devices which connect to the instrument panel in a vehicle to prevent or partially prevent odometers in motor vehicles from accumulating mileage. Your letter indicates that such devices are available for purchase on the Internet and that Toyota believes they may be used to slow or stop the accumulation of mileage shown on the odometer of leased vehicles. Your letter also raises Toyota’s concern that some of these devices may render the odometer, speedometer, and steering wheel control buttons inoperable once installed, and they may prevent a vehicle from receiving the proper maintenance and inspections based its true mileage.

In NHTSA’s view, the marketing for sale, sale, or use of such a device that prevents an odometer display from reading the correct mileage is a violation of Federal law. It is unlawful for a person to “advertise for sale, sell, use, install, or have installed, a device that makes an odometer of a motor vehicle register a mileage different from the mileage the vehicle was driven, as registered by the odometer within the designed tolerance of the manufacturer of the odometer.” 49 U.S.C.

§ 32703(1). A person also may not “disconnect, reset, alter, or have disconnected, reset, or altered, an odometer of a motor vehicle intending to change the mileage registered by the odometer.” Id. § 32703(2). In addition, it is illegal for a person, “with intent to defraud, [to] operate a motor vehicle on a street, road, or highway if the person knows that the odometer of the vehicle is disconnected or not operating.” Id. § 32703(3).1

The marketing for sale, sale, or use of an electronic device that slows or stops a motor vehicle’s odometer from registering mileage driven violates 49 U.S.C. § 32703. NHTSA is aware of no legitimate use for such a device. The devices about which you inquired have two uses: (1) enabling users to completely block a motor vehicle’s odometer from accumulating any mileage

1 It is also against Federal law to “conspire to violate” 49 U.S.C. § 32703. 49 U.S.C. § 32703(4).
 

while the vehicle is being driven; and (2) enabling users to partially block a motor vehicle’s odometer from accumulating mileage while the vehicle is being driven (for example, under this mode, a vehicle driven 100 miles would add less than 100 miles to the vehicle’s odometer).2 Consequently, because these devices make an odometer register a different mileage than what the motor vehicle was actually driven, the marketing, sale, or use of these devices violates 49 U.S.C. § 32703(1). Moreover, as there is no apparent purpose for such a device other than to change the mileage registered by a vehicle’s odometer, use of the device and operation of a vehicle by a person knowing that the device is in use is in violation of 49 U.S.C. §§ 32703(2) and (3).

NHTSA may impose civil penalties of up to $11,125 for each violation of 49 U.S.C. § 32703— up to a maximum of $1,112,518 for a related series of violations. 49 U.S.C. § 32709(a)(1); 49 C.F.R. § 578.6(f)(1).3 Knowing and willful violations of      49 U.S.C. § 32703 are also subject to criminal penalties, including fines under Title 18 of the United States Code, imprisonment for not more than 3 years, or both. 49 U.S.C. § 32709(b). A person that violates 49 U.S.C. § 32703 may also be subject to other appropriate action, including a civil action by a State in which the violation occurs. 49 U.S.C. §§ 32709(c)-(d).

As your letter indicates, the installation or use of a device that prevents a vehicle’s odometer from accurately recording mileage may pose serious safety consequences, in addition to economic and commercial harm. NHTSA remains steadfast in enforcing Federal odometer laws. If you need further assistance, please contact Dan Rabinovitz at 202-366-8534 or via email at Daniel.Rabinovitz@dot.gov.

Sincerely,

JONATHAN CHARLES MORRISON

Digitally signed by JONATHAN CHARLES MORRISON

Date: 2021.01.12 15:29:46

-05'00'

Jonathan C. Morrison

Chief Counsel

2 These devices may also be set to accurately accumulate mileage (i.e., to not block mileage). In this mode, the device serves no purpose.

3 “A person that violates 49 U.S.C. Chapter 327 or a regulation prescribed or order issued thereunder, with intent to defraud, is liable for three times the actual damages or $10,932, whichever is greater.” 49 C.F.R. § 578.6(f)(2).

Dated: 1/12/21

Ref: 49 U.S.C. § 32703 Odometers

ID: 571.226--modified roof--Summit Bodyworks

Mr. Mike Arnett

Summit Bodyworks

County Rd 8

Fort Lupton, CO  80621

Dear Mr. Arnett:

This responds to your inquiry asking whether your vehicles are “modified roof vehicles,” a type of vehicle that is excluded from the applicability of Federal Motor Vehicle Safety Standard (FMVSS) No. 226, “Ejection mitigation.”  As explained below, our answer is yes. 

Paragraph S2 of FMVSS No. 226 excludes “modified roof vehicles” from the standard.  The term “modified roof” is defined in S3 of FMVSS No. 226 as follows: “‘Modified roof’ means the replacement roof on a motor vehicle whose original roof has been removed, in part or in total, or a roof that has to be built over the driver's compartment in vehicles that did not have an original roof over the driver's compartment.”

You state that you “purchase Transit cargo vans from Ford direct and then upfit the interior” to produce recreational vehicles.  You state that you do not remove the roof of the vehicle “in total,” but cut a 14-inch by 14-inch hole in the roof for an electric exhaust vent.  You ask if we would consider your modification to constitute a removal of the original roof “in part.” 

Discussion

Our answer is yes, we consider you to be removing the original roof “in part” when you remove the 14- by 14-inch section of the roof to install the electric exhaust vent. 

In an August 1, 2019 telephone conversation with Deirdre Fujita of my staff, you explain that the exhaust vent is part of an air ventilation and/or conditioning unit that is used when the vehicle is providing temporary living quarters.  It is evident to NHTSA that the unit is important for the comfort of occupants and to the vehicle’s functionality as a recreational vehicle.

After considering the information you provide, we conclude that your vehicles are “modified roof vehicles” under FMVSS No. 226.  Our conclusion is consistent with the agency’s

March 22, 2016 interpretation to Mr. Richard Coon of the Recreation Vehicle Industry Association where NHTSA affirmed that vehicles with roofs modified by the addition of “vents with moveable covers, exhaust or air circulation fans” would be modified roof vehicles under FMVSS No. 226.

I hope this information is helpful.  If you have further questions, please contact Ms. Fujita at (202) 366-2992.

Sincerely,

Jonathan C. Morrison

Chief Counsel

Dated: 8/27/19

Ref: FMVSS No. 226

ID: 571-205-Driver Shield for Buses and Vans_final signed (002)

Ms. Lee Ann Sparks Schetky

Bus & Van Sales

148 N. 90th Rd.

Culver, KS 67484

Dear Ms. Sparks:

This responds to your May 7, 2020 email asking about adding “driver shields” to transit buses and vans. You explain that you are developing a driver’s shield assembly to provide to your customers in the transit industry in an effort to protect drivers from the Coronavirus Disease 2019 (COVID-19). You describe the shields as being constructed with plexiglass, stainless tubing and fasteners, with a swing out door to give drivers access to the stepwell entry platform and passenger cabin. You ask about the requirements that would apply when adding these shields to vehicles. We appreciate this opportunity to respond.

Background 

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized by the National Traffic and Motor Vehicle Safety Act (“Safety Act,” 49 U.S.C. Chapter 301) to issue Federal motor vehicle safety standards (FMVSS) that set performance requirements for new motor vehicles and new items of motor vehicle equipment. NHTSA does not approve motor vehicles or motor vehicle equipment and does not determine whether a product conforms to the FMVSS outside of an agency compliance proceeding. Instead, the Safety Act requires manufacturers to self-certify that their products conform to all applicable FMVSS that are in effect on the date of manufacture. NHTSA also investigates safety-related defects.

Discussion

Our answer below is based on our understanding of the specific information provided in your email and attached documentation. Please note that this interpretation letter does not have the force and effect of law and is not meant to bind the public in any way. NHTSA will make determinations of conformance with the FMVSSs only in the context of an agency enforcement proceeding. This letter is intended only to provide clarity to the public regarding existing requirements under the law, and represents the opinion of the agency on the questions addressed in your email at the time of signature.

After reviewing the information you provided, NHTSA has concluded that the transparent material of the “shield assembly,” located immediately to the right of a driver, is an interior partition composed of motor vehicle “glazing” that must comply with FMVSS No. 205, “Glazing materials.” FMVSS No. 205 establishes minimum performance requirements for glazing materials for use in motor vehicles and motor vehicle equipment and incorporates by reference an industry standard, the American National Standards Institute American National Standard for Safety Glazing Materials for Glazing Motor Vehicles and Motor Vehicle Equipment Operating on Land Highways-Safety Standard (ANSI/SAE Z26.1-1996). FMVSS No. 205 and ANSI/SAE Z26.1 specify performance requirements for various types of glazing (called “Items”), and specify the locations in vehicles in which each item of glazing may be used. FMVSS No. 205 applies to glazing installed in motor vehicles1 prior to first purchase and to aftermarket glazing for use in motor vehicles.

As motor vehicle glazing, the transparent material of your barrier must meet the requirements of FMVSS No. 205 and be certified as meeting that standard by the prime glazing manufacturer, and, if applicable, the manufacturer or distributer who cuts the glazing into components for use in motor vehicles or items of motor vehicle equipment.2 If you, in assembling the barrier, cut the glazing, you must ensure the glazing meets the requirements of FMVSS No. 205, and must certify its compliance pursuant to S6.3 of FMVSS No. 205. On the other hand, if you only assemble the barrier using pre-cut glazing that has been certified by a glazing manufacturer, you are not required to certify the glazing. However, as the manufacturer of the aftermarket barrier, you are responsible for ensuring your product is free from safety-related defects. If you or this agency finds your product to contain a safety-related defect after you market the product, you are responsible for conducting a notice and recall campaign as required under 49 U.S.C. §§ 30118- 30120.

As described in your email, the barrier would be located to the right of the driver. In that location, and for every vehicle type, portions of the glazing would be requisite for driving visibility. Any portion of the glazing that the driver would see through in order to view windows requisite for driving visibility would also be considered requisite for driving visibility. For buses and multipurpose passenger vehicles (MPVs), this would include any window to the immediate right or left of the driver and the front windshield.3 (For passenger cars, all windows are considered requisite for driving visibility.)

1 Requirements for glazing vary by vehicle type. You state that the barriers will be installed in buses and “vans.” NHTSA does not use the term “van” when classifying motor vehicles for purposes of FMVSS applicability. If the vehicle in which the barriers will be installed carry more than 10 persons, the vehicle would be classified as a bus under NHTSA’s FMVSS. If the vehicle carries 10 or fewer persons, it would be classified as either a multipurpose passenger vehicle (MPV) or passenger car, depending on whether the vehicle is built on a truck chassis or with special features for occasional off-road operation (49 CFR 571.3). Based on your email, we assume that the vehicles in which the barriers would be installed are not passenger cars. Thus, we assume the vehicles are “buses” or “MPVs.” We assume the vehicles are not trucks. This classification is important for determining the application of the glazing standard to the vehicles.

2 49 CFR 571.205, S6.

3 In a letter to Cris Morgan, NHTSA concluded that low-level glazing on doors to the right or left of the driver are considered windows that are requisite for driving visibility. Therefore, glazing through which the driver would view

Glazing for interior partitions in areas requisite for driving visibility must be of one of the following types of glazing: Item 1, Item 2, Item 4, Item 4A, Item 10, Item 11A, Item 11C,4 Item 14, Item 15A, or Item 15B. Glazing for interior partitions in areas not requisite for driving visibility must be one of the following types of glazing: Item 1, Item 2, Item 3, Item 4, Item 4A, Item 5, Item 10, Item 11A, Item 11B, Item 11C, Item 12, Item 13, Item 14, Item 15A, Item 15B, Item 16A, or Item 16B.

Please note that there may be additional requirements depending on who installs the barrier. If the barrier is installed prior to first vehicle sale, the installer must ensure that, with the barrier installed, the vehicle complies with FMVSS No. 205 and all other applicable FMVSS, and must certify the vehicle as complying with all applicable FMVSS. If the barrier is installed as aftermarket equipment by a manufacturer, distributor, dealer, rental company, or motor vehicle repair business, that entity would be subject to 49 U.S.C. 30122, which prohibits the entity from knowingly making inoperative any device or element of design installed on or in a motor vehicle or item of motor vehicle equipment in compliance with an applicable FMVSS. In either case, the entity installing the barrier should pay particular attention to ensuring that installation of the barrier does not obstruct the driver’s view of the mirrors and/or rearview image required under FMVSS No. 111, “Rear visibility,” impact the vehicle’s compliance with FMVSS No. 302 “Flammability of interior materials,” prevent the driver from readily accessing emergency exits installed in compliance with FMVSS No. 217, “Bus emergency exits and window retention and release,” or impede the driver’s ability to see through the windows needed for driving visibility.5

Apart from requirements that NHTSA administers, the installation of the barrier may be subject to other Federal or State laws or regulations. For example, purchasers or lessees of the vehicles may be subject to the Americans with Disabilities Act (ADA) and the accessibility requirements found at 49 CFR Parts 37 and 38 and may need to ensure that the vehicle they purchase or lease continues to comply with the requirements after the barrier is installed.

these windows would be considered requisite for driving visibility. Letter to Cris Morgan (January 14, 2009), available at https://isearch.nhtsa.gov/files/08-004149--19%20Nov%2008--sa.htm.

4 If the partition is a bullet-resistant shield constructed using Item 11C glazing, the combined parallel luminous transmittance with perpendicular incidence through both the shield and the permanent vehicle glazing is to be at least 60 %.

5 To ensure that installation does not impact the vehicle’s compliance with applicable FMVSS, the installer should be familiar with FMVSS requirements for a vehicle of its type and weight. Please note that installation of a safety barrier in vehicles with a GVWR of 4,536 kg (10,000 pounds) or less may require additional considerations as there are different, and often more stringent, requirements for lighter vehicles.

I hope this information is helpful. If you have any further questions, please feel free to contact Callie Roach of my staff at this address or at (202) 366-2992.

Sincerely,

JONATHAN CHARLES MORRISON

Digitally signed by JONATHAN CHARLES MORRISON 

Date: 2020.06.04 19:42:26 -04'00'

Jonathan C. Morrison Chief Counsel

Dated: 6/4/20

Ref: FMVSS No. 205

ID: 19-000881- 30122 -- Hestrin interp request_v3

Mark Hestrin

P.O. Box 261070

Encino, CA 91426

Dear Mr. Hestrin,

This responds to your March 5, 2019 letter to the National Highway Traffic Safety Administration (NHTSA) regarding an aerodynamic device to improve the aerodynamic efficiency of heavy vehicles.  We have interpreted your letter as asking whether such a product would be in compliance with NHTSA regulations.

Applicable Requirements

The National Traffic and Motor Vehicle Safety Act (Safety Act; 49 U.S.C. Chapter 301) authorizes NHTSA to issue Federal motor vehicle safety standards (FMVSSs) applicable to new motor vehicles and new items of motor vehicle equipment. 

NHTSA does not provide approvals of motor vehicles or motor vehicle equipment and does not make determinations as to whether a product conforms to the FMVSSs outside of agency compliance tests.  Instead, the Safety Act requires manufacturers to self-certify that their products conform to all applicable FMVSSs that are in effect on the date of manufacture.  See

49 U.S.C. 30112(a)(1).  Manufacturers of motor vehicles and motor vehicle equipment are also responsible for ensuring that their products are free of safety-related defects.  Regardless of whether a product is subject to specific FMVSSs, if the entity that created the product or this agency finds the product to contain a safety-related defect after the product is marketed, the creating entity is responsible for conducting a notice and recall campaign as required under 49 U.S.C. §§ 30118-30120.

Additionally, entities producing and installing motor vehicle equipment are subject to the “make inoperative” provision set forth at 49 U.S.C. § 30122.  That section provides, in relevant part: “A manufacturer, distributor, dealer, rental company, or motor vehicle repair business may not knowingly make inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard.”  Entities subject to the “make inoperative” provision, including those that produce so-called “aftermarket” equipment, would be prohibited from installing a product on a vehicle if doing so would take the vehicle out of compliance with any FMVSS.

Discussion

Your letter broadly inquires whether an aerodynamic device to improve the aerodynamic efficiency of heavy vehicles would be in compliance with NHTSA regulations.  As stated above, NHTSA does not make determinations as to whether a product conforms to the FMVSSs outside of agency compliance tests.  We can, however, provide some general information about our requirements. 

NHTSA has interpreted the information provided in your letter to mean that such a device would be motor vehicle equipment as defined in 49 U.S.C. 30102(a)(8)(B), “any similar part or component manufactured or sold for replacement or improvement of a system, part, or component, or as an accessory or addition to a motor vehicle.”  There is no single FMVSS that applies directly to such a device, but if it is installed as original equipment on a new vehicle, the vehicle manufacturer would be required to certify that, with the device installed, the vehicle satisfies the requirements of all applicable FMVSSs.  To determine how installation of such a product could affect compliance with applicable FMVSSs, you should carefully review each FMVSS, available online at: https://www.nhtsa.gov/laws-regulations/fmvss.

If such a product would be installed as aftermarket equipment, not as original equipment, and if such a product would not replace original equipment, the primary potential restriction on such a product is the Safety Act’s “make inoperative” provision.  If an entity subject to the “make inoperative” provision wishes to install aftermarket equipment, that entity is responsible for determining whether installation of that aftermarket equipment makes inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard. 

Examples of a way that aftermarket equipment might “make inoperative” any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment include the following: for example, if an entity were to install a trailer hitch in a new or used vehicle, it would need to ensure that its installation does not make inoperative the vehicle’s compliance with the lamps, reflective devices, and associated equipment requirements of FMVSS No. 108.[1]  Or, an entity manufacturing a holographic car navigation system could not knowingly place a film on windshields that reduces the light transmittance or abrasion resistance of the glazing material or reduces the ability of the glazing to meet any other applicable requirement of FMVSS   No. 205.[2]

Without further information about the device mentioned in your inquiry, NHTSA cannot provide further information about the FMVSSs of which you should be particularly aware.  But note again, as mentioned above, manufacturers of motor vehicle equipment are responsible for ensuring that their products are free of safety-related defects.  If a safety-related defect is found after the product is marketed, the notice and recall provisions at 49 U.S.C. §§ 30118-30120 apply.

Other Considerations

You should be aware that even if such a product does not take the vehicle out of compliance with any applicable FMVSSs, it is possible that State and local laws or restrictions may apply.  You may wish to consult the State and local transportation authorities in the areas the product is, or is intended, to be marketed to make sure it is permissible under these laws.  Additionally, if such a product is applied to commercial vehicles, e.g., heavy trucks and buses, the U.S. Department of Transportation Federal Motor Carrier Safety Administration (FMCSA) requirements may apply.  For further information about FMCSA, please contact FMCSA at 1-800-832-5660 or visit https://www.fmcsa.dot.gov/.        

I hope this information is helpful.  If you have further questions, please contact Ms. Hannah Fish of my staff at (202) 366-1099.

Sincerely,

Jonathan C. Morrison

Chief Counsel

Dated: 8/27/19

Ref: VSA Section 30122

[1] See Letter to Mr. Robert Listou (May 4, 2016), available at https://isearch.nhtsa.gov/files/ES16-001603%20Listou%20Trailer%20Response.htm.

[2] See Letter to Mr. Philippe D. Monnier (January 19, 2017), available at https://isearch.nhtsa.gov/files/15-004254%20WayRay%20Glazing_sb_3.htm.

ID: 571.108 -- AMA -- Schaye--front color changing light

Paul Schaye
CEO, Pedestrian Safety Solutions
245 Park Avenue, 41st Floor
New York, NY 10167

Dear Mr. Schaye:

This responds to your letter requesting an interpretation of whether your auxiliary lamp, the Auto Motion Alert (“your product”), is permissible under Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, reflective devices, and associated equipment.  Because your product would be installed as aftermarket equipment, not as original equipment, and would not replace original equipment, and because FMVSS No. 108 applies only to equipment installed as original equipment or that replaces original equipment, we have interpreted your request as asking whether the installation of your product is permissible under the “make inoperative” provision of the National Traffic and Motor Vehicle Safety Act of 1966 (the Safety Act).  The Safety Act prohibits most automotive businesses from installing aftermarket lighting equipment if doing so would take the vehicle out of compliance with FMVSS No. 108.  For auxiliary lamps, the primary restriction imposed by FMVSS No. 108 is that the lamps cannot impair the effectiveness of a vehicle’s required lighting equipment.

We have tentatively concluded that your product is unlikely to impair the effectiveness of required lighting equipment, and is therefore unlikely to violate the “make inoperative” provision.  However, we wish to emphasize that the existence of impairment would depend on the context in which your lamp is used, and thus must be determined on a case-by-case basis.  It is the responsibility of the business installing your product to determine whether doing so constitutes a “make inoperative” violation. We explain our reasoning below.

Description of your product
You describe your product as a lamp that is designed to be installed above a vehicle’s front license plate using the two top mounting screws.  You state that the purpose of installing the lamps on a vehicle is to communicate to road users ahead of the vehicle whether the vehicle is decelerating, accelerating, or maintaining a constant speed. You state that your product consists of a strip of amber and white LEDs, although you do not provide the exact photometric intensity.  Either the white or amber LEDs are activated, depending upon the underlying condition.  You state that the white LEDs are activated and steadily burn while the vehicle is accelerating or travelling at a constant speed, and that the amber LEDs are activated and steadily burn while the vehicle is decelerating or stopped.  The LEDs are actuated by a microcontroller that detects the vehicle’s acceleration using internal accelerometers.  We also understand, based on our communications with you, that the brightness of the LEDs, the threshold levels of acceleration or deceleration activating the LEDs can be controlled through software, although it is our understanding that the product will be sold as a sealed unit that is not adjustable by the end user. You state that, although the LEDs activate independently of other vehicle systems (including the braking system), your product is powered by either a direct connection to the vehicle’s battery, or a 12-volt DC wire supply that is live when the vehicle is turned on.  The exterior housing consists of a weather-resistant polymer enclosure with gasket type seal. 

Applicable Requirements
Because you state that you intend to sell your product aftermarket, the primary potential restriction on its installation is the Safety Act’s “make inoperative” provision. 49 U.S.C.           § 30122.  The “make inoperative” provision states that manufacturers, distributors, dealers, rental companies and motor vehicle repair businesses may not “knowingly make inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard” promulgated under the Safety Act.  This means that the businesses subject to the “make inoperative” provision would be prohibited from installing your product on a vehicle if doing so would take the vehicle out of compliance with any FMVSS.  The “make inoperative” provision does not apply vehicle owners, and these owners are not precluded from modifying their vehicle by NHTSA’s statutes or regulations.  State and local laws, however, may impact whether an owner may use a vehicle they have modified in a particular jurisdiction.

NHTSA considers the installation of an aftermarket lamp to violate the “make inoperative” provision if the installation of the same lamp as original equipment would violate FMVSS No. 108.[1]  As a non-required (“auxiliary”) lamp, your product is not required to meet any of the performance requirements in FMVSS No. 108 that it would need to meet if it were installed as original equipment.[2]  However, your product would be prohibited under FMVSS No. 108 (and thus, would violate the “make inoperative” provision) if it would “impair[] the effectiveness of lighting equipment required by this standard.” FMVSS No. 108, S6.2.1.    

Because the existence of impairment is, in part, a function of the context in which an auxiliary lamp is used, impairment must be determined on a case-by-case basis.  If a business subject to the “make inoperative” provision installs an aftermarket auxiliary lamp, that entity is responsible for determining whether doing so causes impairment.  If NHTSA determines that a business to which the “make inoperative” provision applies has impaired the effectiveness of required lamps, that business would be subject to a fine of up to $22,329 per violation.[3]  

Discussion
Based on the information you provided in your interpretation request, we have tentatively concluded that your product, if configured and installed in conformance with the restrictions described in letter, is unlikely to impair the effectiveness of a vehicle’s required lighting, and its installation on a vehicle would be unlikely to constitute a “make inoperative” violation.  There are four aspects of auxiliary lamps that are relevant to impairment: brightness (i.e., photometric intensity), color, location, and activation pattern.  What follows is a brief explanation of NHTSA’s safety concerns for each of these characteristics, along with examples of instances in which the agency would consider an auxiliary lamp to violate the impairment prohibition.  It should be noted that determining whether an auxiliary lamp impairs the effectiveness of required lamps involves a holistic assessment of the context in which the auxiliary lamps are used, and the examples provided are not exhaustive.  Thus, although this letter discusses these four characteristics separately, they should not be considered in isolation, nor should they be considered an exhaustive list of all the considerations that should be taken into account when making an impairment determination.

Brightness (Photometric Intensity)
NHTSA interprets the impairment provision to prohibit auxiliary lamps that are so bright as to obscure or distract from a vehicle’s required lamps.  For example, NHTSA has in the past stated that auxiliary lamps that were so bright as to “mask” adjacent required turning signal lamps would be prohibited due to impairment.[4]   While you do not state the precise brightness of your product, you state that its brightness “is limited and so would not impair or mask the vehicle’s headlamps or turn signals.”  Although the extent to which your product would interfere with a vehicle’s required lighting may vary depending on the design and performance of a particular vehicle’s required lamps, we do not believe your product would impair the effectiveness of a vehicle’s required lamps on the basis of brightness if its photometric intensity is sufficiently limited such that your product’s LEDs are noticeably dimmer than the vehicle’s required head lamps and front turn signal lamps.

Color
NHTSA interprets the “impairment” provision to prohibit auxiliary lamps that are colors the agency believes are likely to cause confusion to other road users.  For auxiliary lamps located on the front of the vehicle, colors that could cause confusion include red (which could be confused for a tail lamp), green (which could be confused for a traffic signal), and blue (which could be confused for a law enforcement vehicle).  By contrast, we have consistently said that amber and white lamps are permissible on the front of the vehicle.[5]  Because your product illuminates as either amber or white, depending on the underlying condition, we do not believe your product would impair a vehicle’s required lamps on the basis of color.

Location
NHTSA interprets the “impairment” provision to prohibit auxiliary lamps that are mounted in locations that cause them to interfere with the ability of a vehicle’s required lamps to achieve their purpose. For example, NHTSA has stated in the past that auxiliary lamps placed too close to FMVSS No. 108-compliant identification lamps would be prohibited because they may confuse other road users.[6]  The agency has long maintained that highway traffic safety is enhanced by the familiarity of drivers with established lighting schemes, which facilitates their ability to instantly recognize the meaning the lamps convey and respond accordingly. Therefore, any auxiliary lighting on the front of a vehicle must be located such that it would not interfere or be confused with other required lamps.  Your product is designed to be no wider than a license plate.  In the case where a license plate holder is mounted at the centerline of the vehicle at a lower mounting height than the vehicle’s required lamps, we think your product would, in most cases, be unlikely to interfere with the required lamps’ ability to achieve their function based on proximity.  However, we note that if a vehicle’s front license plate were located somewhere other than the centerline of the front bumper, and especially if it were located near a vehicle’s required lamps, it would be likely that the installation of your product on the front license plate holder would cause impairment.  Our determination in this letter that your product would be unlikely to impair the effectiveness of required lamps on the basis of mounting location assumes that your product is mounted on front centerline of the vehicle.  If your product were mounted somewhere other than the front centerline of the vehicle, we believe that it would be more likely to impair the effectiveness of the vehicle’s required lamps.

Activation Pattern
NHTSA interprets FMVSS No. 108 to require that all auxiliary lamps be “steady burning,” with the sole exception being auxiliary lamps that supplement required lamps that flash, such as turn signals.[7]  While this requirement has been relatively straight-forward to apply in the past, the introduction of new, programable lighting devices (such as your product) that are intended to communicate driver intent to other road users, has convinced the agency that it is necessary to clarify the meaning of “steady burning.”  To this end, we are clarifying here that the requirement that auxiliary lamps be steady burning does not mean that an auxiliary lamp is prohibited from being activated or deactivated automatically.  Rather, it means that the lamp must be steady burning when activated, and that the event that triggers its activation or deactivation (in this case, the vehicle’s rate of acceleration or deceleration exceeding a certain minimum threshold) cannot be so frequent or random that the lamp would distract or confuse other road users.  For example, a lamp that activated and deactivated on an extremely short time interval due to sensitivity to slight changes in the underlying conditions, would not be considered steady-burning.[8]  More traditional examples of lamps that are not steady-burning include, but are not limited to, strobes and turn signals.  By contrast, an auxiliary lamp that gradually changes in intensity based on ambient lighting conditions may be considered steady burning.[9] 

We have determined that your product would likely be considered steady burning because the event that triggers the activation of the LEDs—the deceleration of the vehicle—is likely not something that occurs so frequently or randomly that it would cause your product to appear to flash, which could confuse or distract other road users.  We note that this determination rests on the assumption that your product’s accelerometer is calibrated not to be overly sensitive to small changes in acceleration.    

We acknowledge that this interpretation supersedes some of our prior, more restrictive interpretations of the concept of “impairment.”  In particular, this letter specifically supersedes our previous interpretation concluding that all auxiliary lamps used to communicate “non-standard signals” (i.e., information other than what is communicated by required lamps) to other drivers would categorically impair the effectiveness of a vehicle’s required lamps.[10]  We reiterate, however, that auxiliary lamps may not be used to communicate non-standard signals (or, in fact, any signals) if doing so impairs the effectiveness of required lighting. 

Other Considerations
You should be aware that, even if your product is permissible under FMVSS No. 108 and the “make inoperative” provision, it is possible that State and local laws or restrictions may apply to your product. You may wish to consult the State and local transportation authorities in the areas you intend to market your product to make sure it is permissible under these laws. 

Finally, regardless of whether your product is subject to the restrictions of FMVSS No. 108 or the “make inoperative” provision, please be aware that if you or this agency finds your product to contain a safety-related defect after you market the product, you are responsible for conducting a notice and recall campaign as required under 49 U.S.C. §§ 30118-30120.

If you have further questions, please contact Daniel Koblenz of my staff at 202-366-2992.

Sincerely,

Jonathan C. Morrison
Chief Counsel

Dated: 9/9/19

Ref: FMVSS No. 108

[1] E.g., Letter to Timothy C. Murphy (Nov. 1, 2004), available at https://isearch.nhtsa.gov/files/GF006332.html.

[2] We note that auxiliary lamps that use plastic optical materials must comply with S14.1.2, and are subject to various other minor restrictions that are not relevant here.

[3] See 49 CFR part 578.

[4] E.g., Letter to Mark Wallach (Oct. 17, 2006), available at https://isearch.nhtsa.gov/files/Wallach.3.htm.

[5] E.g., Letter to Anthony M. Cooke (Oct. 19, 2006), available at https://isearch.nhtsa.gov/files/Legg1.htm.

[6] E.g., Letter to [REDACTED] (Jan. 21, 2004), available at https://isearch.nhtsa.gov/files/GF007705.html.

[7] Prior to 2007, FMVSS No. 108 included an explicit requirement that, with the exception of certain types of required lamps (e.g., turn signal lamps), all lamps on a vehicle, including auxiliary lamps, must be steady burning.  In 2007, NHTSA implemented an administrative reorganization of FMVSS No. 108 which, among other things, converted the blanket “steady burning” requirement (and its exceptions) into individual activation requirements for each type of required lamp.  See 72 FR 68234 (Dec. 4, 2007).  Although the reorganized rule no longer includes a blanket “steady burning” requirement, NHTSA stated in the preamble to the reorganized rule that its “rewrite of FMVSS No. 108 is considered administrative in nature because the standard’s existing requirements and obligations are not being increased, decreased, or substantively modified.” Moreover, NHTSA continues to believe that flashing auxiliary lamps would impair the effectiveness of required lamps by distracting or confusing other road users.

[8] E.g., Letter to Timothy C. Murphy (Nov. 1, 2004), available at https://isearch.nhtsa.gov/files/GF006332.html.

[9] E.g., Letter to Ian Goldstein (July 21, 1998), available at https://isearch.nhtsa.gov/files/18164.ztv.html.

[10] E.g., Letter to Kerry Legg (Feb. 21, 2008), available at https://isearch.nhtsa.gov/files/07-001583as.htm.

ID: 571.108 -- HDC Supplemental Turning Lamps -- HAAS -- 15-4155

Mr. Michael Haas

Haas Design Concepts
P.O. Box 575
Tiburon, CA  94920

Dear Mr. Haas:

This responds to your letter asking whether your product, the HAAS Design Concepts sequential perimeter lighting system, is permissible under Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, Reflective Devices, and Associated Equipment (49 CFR § 571.108).  As explained below, your product is permissible if it operates in a manner that is synchronized with the vehicle’s required turn signals and satisfies the other criteria cited in this letter.

By way of background, the National Highway Traffic Safety Administration (NHTSA) is authorized under the National Traffic and Motor Vehicle Safety Act (49 U.S.C. Chapter 301) to issue FMVSSs that set performance requirements for new motor vehicles and items of motor vehicle equipment.  NHTSA does not provide approvals of motor vehicles or motor vehicle equipment.  Instead, manufacturers are required to self-certify that their products conform to all applicable safety standards that are in effect on the date of manufacture, before the product can be offered for sale.  Manufacturers must also ensure their products are free of safety-related defects.   

The following interpretation of FMVSS No. 108 is based on our understanding of the information provided in your letter, and is limited to the system you described. 

Description of Your Product

From your letter and follow-up correspondence with my staff, we understand that your product consists of a strip of 24 amber-colored LEDs that are mounted inside a 30-inch long “Metalized Plastic rail.”[1]  This rail would be attached horizontally along the lower portion of the exterior of a vehicle’s driver and front passenger doors with “two-sided automotive acid rain tape.”  The LED strip would be wired into a “Sequential Controller” through a hole in the door panel.  This Sequential Controller in turn would be “fastened” to the vehicle’s existing turn signal system.

We understand that your product operates as follows:  When the headlamps are activated, all 24 of your product’s LEDs illuminate as steady-burning lamps.  When the driver activates the left or right turn signals, the amber-colored LEDs on the corresponding side become brighter sequentially from the “front” end of the rail (i.e., the end nearer to the front of the car) to the rear end of the rail.  It is our understanding that this sequential turn signal function can be activated regardless of whether the headlamp system is on or off, the only difference being the initial brightness of the LEDs (dim vs. off).  You state that your product’s cycle of sequentially activating LEDs is timed so that the cycle restarts at a rate that matches the flash rate of the required turn signals, and that if the turn signal is cancelled, the LEDs immediately return to their steady-burning (or “off”) state even if they are only partway through a cycle.

Applicable Requirements

Motor vehicle lighting that is installed as original equipment is regulated under FMVSS No. 108.  FMVSS No. 108 requires that vehicles be equipped with certain types of lamps (“required” lamps), and sets out specific performance standards that those lamps must meet.  Non-required (or “auxiliary”) lamps, while still regulated under FMVSS No. 108, are not required to meet specific performance requirements in the same way that the required lamps are.  Rather, auxiliary lamps are subject to S6.2.1, which states: “No additional lamp, reflective device, or other motor vehicle equipment is permitted to be installed that impairs the effectiveness of lighting equipment required by this standard.”

NHTSA has issued numerous interpretations on the meaning of the phrase “impairs the effectiveness” in S6.2.1.  For example, an auxiliary lamp impairs the effectiveness of required lighting equipment if it causes “confusion with the signal sent by another [required] lamp.”[2]  Further, an auxiliary lamp that supplements a specific required lamp should “perform in the same manner, and perform the same function, as the original equipment it is intended to supplement.”[3]  The question of whether an auxiliary lamp impairs required lighting equipment is usually decided on a case-by-case basis. 

Discussion

We do not believe that your product would impair the effectiveness of a vehicle’s required lighting equipment in either its steady-burning state or when it sequentially flashes for signaling purposes.  Please note, however, that your product may need to conform to certain requirements relating to the vehicle’s hazard warning system, depending on whether your product activates with the vehicle’s hazard warning lamps.

We do not believe that your product would impair the effectiveness of required lamps in its steady-burning state because it operates in a way that is consistent with FMVSS No. 108’s requirements for a side marker lamp (which is the type of signal lamp your product most closely resembles).[4]  Specifically, your product activates when the vehicle’s headlamp system is
activated.  Its LEDs are steady-burning except when they flash as part of the turn signal system.  Furthermore, the LEDs are amber, which we have previously determined is the only appropriate color for auxiliary side marker lamps that are located towards the front end of the vehicle.[5]

We also do not believe that your product would impair the effectiveness of the vehicle’s required turn signals when flashing for signaling purposes because your product’s cycle of sequentially illuminating its LEDs repeats at a rate that is synchronized to the required turn lamps.[6]  The illumination sequence restarts in time with each flash of the required turn signal lamps, and when the turn signal is cancelled, your product returns to a steady-burning state (or turns off) immediately.[7] 

Although you do not discuss your product’s functionality as a hazard lamp in your interpretation request, we believe it is possible that, depending on how your product is wired, its LEDs may activate as part of the vehicle’s hazard warning system.  If this is the case, your product would need to meet additional requirements to ensure it does not impair the effectiveness of the vehicle’s hazard lamps.  S6.6.2 of FMVSS No. 108 requires a “vehicular hazard warning [signal] operating unit,” [8] which is defined in S4 as “a driver-controlled device which causes all required turn signal lamps to flash simultaneously to indicate to approaching drivers the presence of a vehicle hazard.”  Although your product is not a “required turn signal lamp,” if it is activated as part of the vehicular hazard warning signal system, its LEDs would need to flash simultaneously when the hazard warning lights are activated to be permissible under FMVSS No. 108.  If the LEDs illuminate sequentially rather than “simultaneously,” it could cause driver confusion and could potentially interfere with the effectiveness of the hazard warning system.

Lamp Brightness

Separate from your product’s sequential activation pattern, we are concerned that the brightness of your product’s LEDs could potentially impair the vehicle’s required signal lamps.  Specifically, if the LEDs are too bright, it could obscure the vehicle’s required signal lamps, or could cause other drivers not to recognize that your product supplements the vehicle’s required turn signals.  To avoid the possibility of impairment due to brightness, it is our view that a supplemental signal lamp such as your product should not be noticeably brighter than the required lamps that it supplements.  Note that, because the question of impairment should be analyzed on a vehicle-by-vehicle basis, the maximum brightness of as auxiliary signal lamp on a particular vehicle must be determined based on the brightness of the required signal lamps that are actually installed as original equipment on that vehicle—even if FMVSS No. 108 permits signal lamps of that type to be brighter.

Make Inoperative Provision

Please note that your product would be subject to the Safety Act’s “make inoperative” provision (49 U.S.C. § 30122).  The “make inoperative” provision prohibits manufacturers, distributors, dealers, rental companies and motor vehicle repair businesses from “knowingly mak[ing] inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable motor vehicle safety standard” promulgated by NHTSA.  If a business that falls into one of these categories were to install your product on a vehicle in a way that interferes with a vehicle’s required lighting or otherwise renders a vehicle’s other safety features inoperative, that entity could be subject to a NHTSA enforcement action.  Historically, NHTSA has viewed the “impairment” and “make inoperative” standards as identical (i.e., lighting equipment that is prohibited under the impairment provision would also be prohibited under the make inoperative provision, and vice versa).[9]

If you have further questions, you may refer them to Daniel Koblenz of my staff at (202) 366-2992.

Sincerely,

Jonathan C. Morrison

Chief Counsel

Dated: 5/6/19

Ref: FMVSS No. 108

[1] You explain that these LEDs “are sealed by clear-colored cocking inside the cap rail which are protected from the elements by Smoke Colored Polycarbonate plastic covers,” and that the polycarbonate material you use to cover your product’s LEDs “is similar to the polycarbonate used to protect all automotive head lights and tail lights.”  We would like to point out that the polycarbonate that is typically used to protect required lighting cannot meet the requirements of S14.4.2 without some sort of protective coating. 

[2] Letter to Byung M. Soh (Sept. 13, 1988), available at https://isearch.nhtsa.gov/gm/88/nht88-3.100.html.

[3] Letter to Mr. Bart W. Hill (Aug. 27, 1999), available at http://isearch.nhtsa.gov/files/20174.ztv.htm.

[4] Letter to Robert M. Currie (Jan. 31, 1997), available at https://isearch.nhtsa.gov/files/13208.ztv.html.

[5] Letter to Robert J. Ponticelli (Aug. 18, 1995), available at https://isearch.nhtsa.gov/files/1083.html.

[6] Letter to Jerry Koh (Feb. 6, 1986), available at https://isearch.nhtsa.gov/gm/86/86-2.50.html 

[7] We note that side marker lamps do not need to flash simultaneously with required turn lamps to be synchronized.  See letter to Warren M. Heath (Dec. 23, 1969), available at https://isearch.nhtsa.gov/aiam/aiam0192.html.    

[8] The text of S6.6.2 uses the term “vehicular hazard warning operating unit,” which inadvertently omits the word “signal.”

[9] E.g., Letter to Timothy C. Murphy (Nov. 1, 2004), available at https://isearch.nhtsa.gov/files/GF006332.html.

ID: 571.108--HELP System--Powers

Mr. Stephen T. Powers

Emergency Safety Solutions, Inc. (ESS)

825 Town & Country Lane

Houston, TX 77024

Dear Mr. Powers:

This letter responds to your request for an interpretation of whether your company’s product, the Hazard Enhanced Lighting Package (HELP) system, would be permitted under Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, reflective devices, and associated equipment.  As explained below, our answer is yes, but only if the product is automatically activated following a crash that disabled the vehicle on which it is installed, or if manual activation of the system is restricted to when the vehicle is not moving and the parking brake is engaged.

By way of background, the National Highway Traffic Safety Administration (NHTSA) does not provide approvals of motor vehicles or motor vehicle equipment.  Instead, manufacturers are required to self-certify that their products conform to all applicable FMVSS that are in effect on the date of manufacture, before the product can be offered for sale. Manufacturers must also ensure their products are free of safety-related defects.  This letter represents NHTSA’s opinion concerning whether your product would be permitted under FMVSS No. 108.  It is not an approval of your product, nor is it an endorsement of the safety claims made in your initial interpretation request and supplemental submission.

Description of the HELP system

ESS describes the HELP system as an “added functionality” to the vehicle’s turn signal[1] which causes the lamps to flash at an accelerated rate of between 2-6 hertz to create “a strobing effect.”  According to ESS, this function could be activated in two ways: automatically when the vehicle is in “a significant crash,” or manually by pressing the hazard button while the hazard warning system is active and the vehicle is stopped.  In ESS’s supplemental submission, it clarified that, once the HELP system is manually activated, pressing the hazard button would switch the vehicle back to the hazard warning system, and pressing the hazard button again would turn both systems off.  ESS states that if the vehicle starts moving while the HELP system is activated, the system will deactivate, but does not specify whether this deactivation would be in the form of switching to the hazard warning system, or both systems deactivating.  ESS states that the system would use the vehicle’s required turn signal lamps, and that  the lamps would continue to comply with photometric and other requirements when the HELP system is activated.

Discussion

We view the HELP system as an auxiliary vehicular hazard warning signal flasher that is separate from the required vehicular hazard warning signal flasher, and which is activated under certain limited conditions.  Because it is not required equipment, the primary restriction that FMVSS No. 108 imposes on the HELP system is that the system may not impair the effectiveness of the vehicle’s required lighting equipment.[2] 

As discussed below, we have determined that there are two aspects of the HELP system that could potentially impair the effectiveness of a vehicle’s required lighting equipment. The first relates to the manner in which the driver manually activates the system using the hazard button. The second relates to the actual operation of the HELP system once it is activated.   

System Activation

FMVSS No. 108 requires that a vehicle’s hazard warning system be operated by a switch (or set of switches) that can be actuated with a single action by the driver.[3]  Although this requirement is technically met by the manual switch described in your supplemental submission, since the hazard warning system could be activated with one action both when the HELP system is activated and when it is not activated, we believe that the method of activation you describe would impair the effectiveness of the hazard warning system, as it would confuse a driver who is not familiar with the HELP system.  Since most vehicles are designed in a way that a second press of the hazard button deactivates the hazard warning system, it is reasonable to foresee a scenario in which a driver of a vehicle equipped with the HELP system presses the hazard button intending to turn both systems off, and not realizing that doing so would require two additional presses. 

Given the risk of accidental activation of both the HELP system and the required hazard warning system due to confusion over the activation of the two systems using a single button, we have concluded that incorporating manual activation of the HELP system into the hazard button would impair the effectiveness of lighting equipment required under FMVSS No. 108.

System Operation

In an interpretation letter analyzing impairment under FMVSS No. 108, NHTSA explained that there are, in essence, four ways that a lamp could impair effectiveness: brightness, color, location, and activation pattern.[4]  Since the HELP system operates through the use of the vehicle’s existing required turn signal lamps, and does not purport to alter the brightness, color, or location of those lamps, we do not believe use of the HELP system would impair the effectiveness of the vehicle’s lighting system on the basis of brightness, color, or location. 

However, there are concerns regarding the fourth criterion: the activation pattern of the turn signal lamps.  When a required turn signal lamp is activated using either the required turn signal flasher or the required vehicular hazard warning signal flasher, the vehicle’s turn signal lamps must flash at a rate of 1-2 hertz.[5]­­,[6] ­ ­­­­However, when the turn signal lamps are activated using the HELP system, they would flash at a rate that could be as much as three times higher (2-6 hertz).  Ultimately, the question of whether the HELP system is permitted under FMVSS No. 108 depends on whether this higher flash rate would impair the effectiveness of the vehicle’s required lighting equipment.

We have considered this impairment issue by analyzing the HELP system as it would be used in two separate circumstances.   

First is its capability of automatically activating following a serious crash.  FMVSS No. 108 requires that a hazard warning operating unit be “driver controlled.”  However, as NHTSA explained in letters to Mr. Timothy Bartlett[7] and Mr. Brian Latouf,[8] automatic activation of the hazard warning system is permitted in certain, limited situations in which there was no ambiguity regarding the reason for the hazard system’s activation.  In the Bartlett letter, we stated the hazard warning system could activate automatically following a crash.  In the Latouf letter, we said the hazard warning signals could activate when a vehicle operated using GM’s “Super Cruise” partial automation system comes to a stop after finding the driver unresponsive.  In both situations, the purpose for which the hazard warning system is being used—to warn other road users of the disabled or stopped vehicle—is unambiguous.  

Applying this reasoning to your system, we likewise conclude that the HELP system would not impair a vehicle’s required lighting equipment when limited to automatic activation following a crash that disables the vehicle, such as one in which the air bags are triggered.  As you indicated in your request, the purpose of the HELP system’s 2-6 hertz flash rate is to increase conspicuity of a vehicle in an emergency.  We believe the risk of impairment is low if activated when the vehicle is disabled following a crash, since the crash would almost certainly create an emergency in which conspicuity of the vehicle’s lamps is of primary importance.[9] 

The second circumstance involves the manual activation of the HELP system.  While the HELP system is an auxiliary system that is not subject to the requirements that apply to the hazard warning system, NHTSA has the same concern about the ambiguity of the meaning of the HELP system’s operation that it expressed in the letters to Mr. Bartlett and Mr. Latouf.  Unlike an automatic activation when the vehicle is disabled following a crash, if the system can be manually activated, NHTSA is concerned that the HELP system could be activated in a wide array of non-emergency situations that could confuse other road users.  Given that there is a higher risk of impairment if the vehicle allows manual activation of the HELP system, we have concluded that if it is possible to activate the system manually, your system is permissible under the impairment prohibition only if its activation is restricted to when the vehicle is not moving and either the vehicle is in park or the parking brake is engaged.  Moreover, consistent with our determination in the previous section, the switch that activates the HELP system must be separate from the hazard button, and must be designed so that it is not easily confused with the hazard button.  

Please note that, while this letter finds that the HELP system does not necessarily violate the prohibition on impairment, it is the responsibility of the certifying vehicle manufacturer to ensure that the particular implementation of the system in a vehicle would not impair the effectiveness of required lighting equipment.

Sincerely,

Jonathan C. Morrison

Chief Counsel

Dated: 1/19/21

Ref: FMVSS No. 108

[1] You state in your letter that the system would activated the “hazard warning lamps.”  Hazard warning lamps are not a type of lamp that NHTSA regulates.  Rather, vehicles are required to be equipped with a “Vehicular hazard warning signal flasher,” which is a device that, when activated, causes all the vehicle’s turn signal lamps to flash simultaneously.

[2] See FMVSS No. 108, S6.2

[3] See FMVSS No. 108, S9.6.2

[4] https://isearch.nhtsa.gov/files/571.108%20--%20AMA%20--%20Schaye--front%20color%20changing%20light.htm

[5] See FMVSS No. 108, S14.9.3.5.3, S14.9.3.9.3, and Figure 2

[6] Although you were correct when you stated in your supplemental submission that this flash rate was chosen in large part due to the limitations of incandescent light sources that existed at the time the standard was adopted, the maximum flash rate is specified in Standard 108, and cannot be changed except through the rulemaking process.

[7] https://isearch.nhtsa.gov/files/23695.ztv.html

[8] https://isearch.nhtsa.gov/files/16-1289%20(GM%20hazard%20innovative)%20--%2028%20Apr%2016%20rsy.htm

[9] To be clear, NHTSA is unable to agree with your assertions that the HELP system would provide the safety benefits you describe in your request and supplemental submission. Our letter today does not endorse or concur with such statements.

ID: 571.108--Supplement beam--Boykin--16-0884

Mr. Marcus Boykin

B-G Innovative Safety Systems, LLC

79 Pasture Road

Lexington, TN 38351

Dear Mr. Boykin:

This responds to your letter asking about the application of Federal Motor Vehicle Safety Standard (FMVSS) No. 108, “Lamps, reflective devices, and associated equipment,” to a lighting system your company has developed.  In your letter and phone conversation with John Piazza of my staff, you describe your product as “an auxiliary vehicle lamp operating system” for use both as original equipment (OE) and as aftermarket equipment.

You state that your product, which adapts to the existing headlight wiring harness, provides a supplemental lower beam from the existing upper beam when the lower beam fails.  We understand that, when the lower beam is not in a failed state, the headlight system, controls, and telltales function normally.  If the lower beam is selected and has failed or does fail, your system provides a supplemental lower beam from the existing upper beam.  You state that the lighting on the converted upper beam is “diffused down to the same output illumination as” the lower beam.  If the upper beam is selected, the upper beam will continue to function normally. 

We further understand that, with respect to the OE version of your product, you contemplate a dashboard warning to warn the driver that the normal lower beam is not functioning.  In the aftermarket version of your product, once the vehicle’s lower beam has failed and your device is providing a supplemental lower beam, every time the engine is started the headlights will flash three times to warn the driver that the original equipment lower beam is not operating and that your device is providing a supplemental lower beam.  You state that you are seeking “interpretation and approval” of your device.

As we explain below, while NHTSA does not provide approvals of motor vehicles or motor vehicle equipment and does not make compliance determinations outside of an agency compliance proceeding, we are able to provide you with our interpretation of how NHTSA’s statute and regulations would apply to your product as you have described it to us.  We believe that your product would be considered supplemental lighting.  As such, it may be installed as original equipment as long as it does not impair the effectiveness of any required lighting.  If your product is offered as aftermarket equipment, it would not be directly subject to FMVSS No. 108 but would be subject to the Safety Act’s make inoperative prohibition.

Background

The National Highway Traffic Safety Administration (NHTSA) is authorized by the National Traffic and Motor Vehicle Safety Act (Safety Act), 49 U.S.C. Chapter 301, to issue Federal motor vehicle safety standards that set performance requirements for new motor vehicles and new items of motor vehicle equipment.  NHTSA does not provide approvals of motor vehicles or motor vehicle equipment and does not make determinations as to whether a product conforms to the relevant FMVSS outside of an agency compliance proceeding.  Instead, the Safety Act requires manufacturers to self-certify that their products conform to all applicable FMVSSs.  Manufacturers must also ensure that their products are free of safety-related defects.

This letter provides you with our interpretation of how the statute and regulations administered by NHTSA would apply to your product as you have described it to us, based on our understanding of the information provided.  This is not an “approval” of your product.

Vehicle lighting sold as OE is regulated under FMVSS No. 108.  (All references in this letter are to subsections of FMVSS No. 108 unless otherwise noted.).  FMVSS No. 108 requires vehicles to be equipped with certain types of lamps (known as “required” lamps), which must meet very specific and detailed performance standards.[1]  All other lamps are considered “supplemental” lamps.[2]  Unlike OE required lamps, OE supplemental lamps are not required to meet any specific performance requirements.  However, they are required to comply with certain generally-applicable provisions of FMVSS No. 108.  One of these provisions is set forth in S6.2.1, which states: “No additional lamp, reflective device, or other motor vehicle equipment is permitted to be installed that impairs the effectiveness of lighting equipment required by this standard.”

Both OE and aftermarket vehicle lighting are subject to the Safety Act’s “make inoperative” prohibition (49 U.S.C. § 30122), which prohibits a manufacturer, distributor, dealer, rental company, or motor vehicle repair business from knowingly making inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable FMVSS.  While this “make inoperative” prohibition does not apply to individual vehicle owners, NHTSA encourages vehicle owners not to remove or otherwise tamper with vehicle safety equipment.  Also, any modifications made by a vehicle owner would have to comply with applicable state law. 

Discussion

FMVSS No. 108 requires vehicles to be equipped with one of several permissible headlighting systems.  Headlighting systems are comprised of headlamps and associated hardware.  The purpose of headlighting is primarily to provide forward illumination.[3] 

The threshold issue presented by your request is whether your product is part of the required headlighting system, and thus subject to FMVSS No. 108’s requirements applicable to headlighting systems or, instead, supplemental lighting that is regulated by FMVSS No. 108’s impairment provision.   

In determining whether lighting equipment that provides forward illumination is part of the required headlighting system or, instead, supplemental lighting, NHTSA looks at several factors.  These include: (1) where the lamp directs its light; (2) whether it uses a headlamp replaceable light source to emit a beam that provides significantly more light flux than supplemental cornering lamps or fog lamps; (3) whether the lamp is intended to be used regularly, or is limited to more narrow driving conditions and situations; (4) whether the vehicle’s complete lighting system, not including the lamp in question, would include all of the forward lighting equipment required by FMVSS No. 108;  (5) whether there is a manual on/off switch; and (6) whether the lighting feature is one that activates only upon the failure of an element of the required headlighting system and acts as a temporary backup of that lighting element.[4] 

The last of these factors is most relevant to your product.  Prior agency interpretations have found that a lighting feature that activates an upper beam light source when the lower beam fails or a lower beam headlamp upon the failure of an upper beam headlamp is supplemental lighting.[5]  The system you describe activates a back-up beam only upon the failure of the required lower beam.  Accordingly, we believe it is supplemental lighting. 

Since you contemplate selling your supplemental lighting device as original and/or aftermarket equipment, we will consider the requirements affecting each of these.

Supplemental lighting installed as original equipment

Supplemental lighting installed as OE (i.e. before sale to first purchaser other than for resale) is permitted if the lighting does not impair the effectiveness of any lighting equipment required by FMVSS No. 108 (S6.2.1).  If you are the manufacturer of original lighting equipment required by FMVSS No. 108, but not the manufacturer of the vehicle on which it is installed, the vehicle manufacturer, and not you, has the legal responsibility under the Safety Act to certify that the vehicle complies with FMVSS No. 108 and all other applicable FMVSSs.  Accordingly, the vehicle manufacturer must certify that supplemental lighting installed as OE complies with S6.2.1.  Effectiveness may be impaired if, among other things, the device creates confusion with the signal sent by another lamp, or functionally interferes with it, or modifies its candlepower to either below the minima or above the maxima permitted by the standard.[6] 

Table XIX has specific photometry requirements (maxima and minima) for lower beams.  Activation of an upper beam light source when a lower beam source fails raises considerations of glare.  The lower beam maxima are meant to ensure that other roadway users are not glared.  If your device produces a supplemental beam that exceeds the lower beam photometric maxima, we would consider that to impair the effectiveness of the headlighting system.  Accordingly, your device needs to modify the upper beam to ensure that the lower beam photometric maxima are not exceeded. [7]  Because your device is supplemental lighting, it would not be required to provide sufficient illumination to meet or exceed the photometric minima required for a lower beam headlamp.  However, we note that by reducing the output illumination of the upper beam to that of the lower beam, the reduced upper beam would provide only a limited amount of illumination that may not be sufficient to usefully illuminate the road. 

For your information, we also point out below several other requirements of which you should be aware in designing and manufacturing your product.  (Note that it is the responsibility of manufacturers, and not NHTSA, to identity all FMVSSs applicable to their products and certify the compliance of their products with the standards.)

• Your product must not interfere with the activation and operation of the upper beam.    
•  It may not impair the effectiveness of the upper beam headlamp indicator required by S9.5.  When your device is providing a supplemental lower beam, it should do so in a way that the upper beam indicator is not activated.  Also, when the driver (or vehicle, if it has a semiautomatic headlamp beam switching device, or automatic headlights) has activated the upper beams, the upper beams must be activated and the upper beam indicator must be activated.  
• S9.4 requires that “the lower and upper beams must not be energized simultaneously except momentarily for temporary signaling purposes or during switching between beams.” 
• The headlamps must be steady burning, except that they may be flashed for signaling purposes.[8]  We would not consider your system’s momentary flashing function as violating this requirement because it is similar to a signaling function and would not be likely to confuse other motorists because it only flashes upon start-up.  
• The device generally should not function in such a way that it would be likely to confuse other motorists (for example, it should not mask the ability of other drivers to perceive the front turn signal).
• If a telltale or control is offered as original equipment, it must comply with any relevant requirements in FMVSS No. 101, “Controls and displays.”

We wish to point out that Table I-a requires that “[t]he wiring harness or connector assembly of each headlighting system must be designed so that only those light sources intended for meeting lower beam photometrics are energized when the beam selector switch is in the lower beam position[.]”  Although it may appear that a device such as yours might not meet this requirement, NHTSA has interpreted the requirement otherwise. 

This issue arises if the lower beam is activated (with the beam selector switch in the lower beam position) and then fails, after which a system (such as yours) activates a modified upper beam as a backup lower beam.  If the backup lower beam utilizes upper beam light sources that are not normally used for meeting lower beam photometrics, the backup lower beam might be viewed as violating this requirement.[9]  However, prior interpretations have concluded that this Table I-a requirement does not apply to a failure condition in which a supplemental beam supplements a failed lower or upper beam, assuming the supplemental light does not otherwise impair the effectiveness of any required lighting.[10]  Applying that line of reasoning, we believe that your system would not create a noncompliance with the Table I-a requirement.

Supplemental lighting offered and installed as aftermarket equipment

Supplemental lighting offered as aftermarket equipment (accessory lighting) is not directly subject to FMVSS No. 108, which applies only to original equipment and lighting equipment manufactured to replace original lighting equipment required by FMVSS No. 108.  Section 30122 of the Safety Act, however, prohibits a manufacturer, distributor, dealer, rental company, or motor vehicle repair business from knowingly making inoperative, in whole or in part original required lighting equipment.  In applying the make inoperative prohibition to accessory lighting we typically ask whether the accessory lighting would impair the effectiveness of any required lighting.  Generally, if an item of accessory lighting would not be permitted as original equipment, commercial entities will not be permitted to install the lighting as an aftermarket accessory for a vehicle in use.  Thus, the make inoperative analysis is generally the same as the impairment analysis we applied above in the context of supplemental lighting installed as original equipment.  We observe that, due to varying headlamp designs throughout the vehicle fleet, there may be potential compatibility issues with the product you describe and certain vehicles.  In addition, manufacturers of aftermarket lighting accessories are subject to the Safety Act’s defect notification and remedy requirements discussed above.    

We also note that manufacturers of equipment to which an FMVSS applies must meet the manufacturer identification requirements set out in 49 CFR Part 566.  For these and other requirements, you may consult NHTSA’s New Manufacturers Handbook, available at https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/manufacturer_information_march2014.pdf.

If you have any further questions, please contact John Piazza at (202) 366-2992.

Sincerely,

Jonathan Morrison

Chief Counsel

Dated: 5/17/19

Ref: FMVSS No. 108

[1] The standard’s performance requirements also apply to lamps that are “for replacement of like equipment on vehicles to which this standard applies.”  On a related matter, we note that you state that “drivers with a failed light are out of compliance.”  This is incorrect, as FMVSS No. 108 does not regulate lighting in use.  Therefore, if a headlamp fails in operation, the vehicle is not “out of compliance” with the Federal standard (state laws may apply to in-use performance).

[2] NHTSA also uses the term “auxiliary” lamps.

[3] S4 (“Headlamp means a lighting device providing an upper and/or a lower beam used for providing illumination forward of the vehicle.”) (Formatting in original.)

[4] Letter to [Redacted] (Jan. 21, 2004) ((1)-(5)), available at https://isearch.nhtsa.gov/files/swivelinglamp.3.html (last accessed June 20, 2018); letter to L. W. Camp, Ford Motor Company (July 15, 1998) ((6)), available at https://isearch.nhtsa.gov/files/18080.ztv.html (last accessed June 20, 2018). 

[5] Letter to L. W. Camp, supra (lower beam backing up upper beam); letter to Ian Goldstein, Safe Passage Technologies (July 21, 1998) (upper beam backing up lower beam), available at https://isearch.nhtsa.gov/files/18164.ztv.html.

[6] See, e.g., letter to Byung M. Soh, Target Marketing Systems, Inc. (Sept. 13, 1988), available at https://isearch.nhtsa.gov/gm/88/nht88-3.100.html (last accessed June 20, 2018).

[7] Letter to Ian Goldstein, supra (“Because headlamps are primarily operated on the lower beam, activation of an upper beam light source when a lower beam source fails raises considerations of glare . . . the upper beam in this instance ideally should be activated at a markedly reduced intensity such that it does not impair the effectiveness of required lighting devices [S6.2.1], or, more specifically, that, as a lower beam substitute[] it does not compromise turn signal visibility.”)

[8] Table I-a.

[9] Whether this would occur depends on the design of that particular headlighting system.  For example, this would not be the case if the headlighting system used the same light sources for both the lower and the upper beams.

[10] Letter to L. W. Camp, supra (lower beam supplementing failed upper beam).  See also letter to Ian Goldstein, supra (modified upper beam supplementing failed lower

ID: 05-Turnquist_drn

Mr. Harold V. Turnquist
Transportation Administrator
1780 West 7^th Street
Saint Paul, MN 55116-2347




Dear Mr. Turnquist:

This responds to your letter requesting confirmation that there has been no change since 1998 in the National Highway Traffic Safety Administration (NHTSAs) position regarding use of 15-passenger vans by your districts Early Childhood Family Education (ECFE) program. In an April 29, 1998, letter to you, then Acting Chief Counsel John Womack stated that NHTSA does not consider the ECFE program to constitute a "school" as that term is used in our statute. Mr. Womack concluded that new buses leased to you for transporting ECFE Program participants were thus not required to be school buses under Federal law.

Assuming the ECFE program has not changed, we confirm that we still believe that the instruction in developing the participants parenting skills are distinct from the academic instruction associated with a "school", and that we thus do not consider the ECFE program to be a "school" for purposes of our regulations. Accordingly, if a dealer were to sell or lease a new 15-passenger van to the Saint Paul Public Schools Community Education Department for the exclusive use of the ECFE program, that dealer need not sell or lease a new school bus.

Nonetheless, there have been developments in the last few years regarding the use of 15-passenger vans, and we appreciate the opportunity to bring these to your attention.

15-Passenger Van Rollover Risk

The way some 15-passenger vans may be driven may subject occupants to an increased risk of rollover crashes. On June 1, 2004, NHTSA Administrator Jeffrey W. Runge, M.D. , reissued a cautionary warning to 15-passenger van users because of an increased rollover risk under certain conditions. NHTSA research has shown that 15-passenger vans have a rollover risk that increases dramatically as the number of occupants increases from fewer than five to more than ten. In fact, 15-passenger vans with 10 or more occupants had a rollover rate in single-vehicle crashes that is nearly three times the rate of those that were lightly loaded.

Dr. Runge advised 15-passenger van users to be aware of the following safety precautions in order to significantly reduce the rollover risk:

• It is important that 15-passenger vans be operated by trained, experienced drivers.
• All occupants must wear seat belts at all times. Eighty percent of those who died in 15-passenger van rollovers nationwide in the year 2000 were not buckled up. Wearing seat belts dramatically increases the chances of survival during a rollover crash. In fatal, single-vehicle rollovers involving 15-passenger vans over the past decade, 92 percent of belted occupants survived.

I am enclosing copies of the consumer advisory and a flyer, "Reducing the Risk of Rollover Crashes in 15-Passenger Vans".

The Multifunction School Activity Bus

In 2003, NHTSA established a new school bus subcategory, the "multifunction school activity bus" (MFSAB). This vehicle is a bus that meets all Federal motor vehicle safety standards for school buses except those for school bus flashing lights and stop arms. MFSABs are sold for purposes that do not include transporting students to and from home or school bus stops. Federal law permits the sale of new MFSABs to child care facilities as an alternative to school buses with flashing lights and stop arms. A copy of a July 31, 2003, final rule that establishes the vehicle category is enclosed for your information.

I hope this information is helpful. If you have any further questions, please feel free to contact us at 202-366-2992.

Sincerely,

Jacqueline Glassman
Chief Counsel

Enclosures
ref:VSA
d.3/14/05

ID: 0513

Mr. Yoshiaki Matsui
Manager, Legal & Homologation Section
Stanley Electric Co. Ltd.
2-9 13, Nakameguro, Meguro-ku
Tokyo 153, Japan

Dear Mr. Matsui:

We have received your letter of November 16, 1994, to Patrick Boyd of this agency, asking for an interpretation of the final rule that amended Motor Vehicle Safety Standard No. 108 on November 2, 1994.

The rule amended S5.1.2(c) to specify, in pertinent part, that "after the outdoor exposure test, plastic materials used for reflex reflectors . . . shall not show . . . haze that exceeds 7 percent . . . ." The amendment is effective November 1, 1995. You have presented two fact situations with respect to replacement reflex reflectors, and ask whether the amended haze requirement is applicable in each case. These are:

"First case - replacement reflex reflectors manufactured after the effective date, but the vehicle to which the reflex reflectors are fitted is no longer manufactured after the effective date."

Motor vehicle replacement equipment is governed by S5.8 of Standard No. 108. S5.8.1 requires that any reflective device manufactured to replace any reflective device on any vehicle to which Standard No. 108 applies shall be designed to conform to Standard No. 108. Paragraphs S5.8.2 through S5.8.9 permit certain specified items of replacement equipment to be manufactured to original equipment specifications (e.g., earlier versions of SAE standards no longer specified for original equipment on motor vehicles); however, reflex reflectors are not included among them. This means that any reflex reflectors manufactured on and after November 1, 1995, whether original or replacement, must conform with the 7 percent haze limitation, regardless of the date of manufacture of the vehicle.

"Second case - Replacement reflex reflectors manufactured before the effective date, which may be

fitted to a vehicle manufactured before or after the effective date. (In this case, the same type of vehicles are manufactured before and after the effective date continuously.)"

A replacement reflex reflector manufactured before November 1, 1995, to replace a reflex reflector on a vehicle manufactured either before or after November 1, 1995, is subject to the requirement that the plastic materials used in them shall show no haze in a visual inspection after the outdoor exposure test because that is the requirement in effect at the time the replacement reflex reflector is manufactured.

As a practical matter, it would appear to make no difference when the reflector was manufactured or to which specification. The amendment is not intended to change manufacturing techniques or composition of plastics materials in any way. Because it is impossible not to have some degree of haze at the end of the three-year test period, Standard No. 108 was amended to make it more objective and practicable, and the measured haze limit raised to 7 percent, at which point haze is visible to the naked eye.

Sincerely,

Philip R. Recht Chief Counsel

ref:108 d:12/7/94